7:00 am

Sat March 24, 2012

Line Of Defense: Arguments In Afghan Attack Case

This is WEEKEND EDITION from NPR News, I'm Scott Simon. Murder charges have been filed against the U.S. Army Sergeant accused of killing 17 Afghan men, women and children. Now, an investigative officer will decide whether there's enough evidence to go forward with a court martial. NPR's Pentagon correspondent, Tom Bowman, walks us through the legal challenges ahead for the defense and the prosecution.

TOM BOWMAN, BYLINE: John Henry Browne is Sergeant Bales' lawyer. He's indicated he may defend his client by putting the wars in Iraq and Afghanistan on trial. So he's highlighted the stress of the Sergeant's tours in Iraq, his traumatic brain injury, and Brown also had this to say about his client.

JOHN HENRY BROWN: He doesn't remember everything the evening in question.

BOWMAN: Doesn't remember everything, but investigators are trying to recreate what happened. They say before dawn on March 11th, Sgt. Bales walked out of his combat outpost and shot men, women and children, then returned to his base and turned himself in. Military sources say there's video surveillance of him laying down his weapon. There could be shell casings and bullet fragments that could be matched to his weapon.

There could also eyewitness accounts. That could be the basis for prosecution. The first line of defense, challenge the evidence. Sgt. Bales' lawyer says he doubts the Army investigators has much forensic evidence, and John Henry Browne could question whether any evidence, like shell casings, is tainted, whether the crime scene was secured. There are other lines of defense. One way to keep Sgt. Bales from being found guilty is to show he was essentially insane.

GARY SOLIS: It's very possible I think that he will be found incompetent to stand trial and never go to trial.

BOWMAN: That's Gary Solis. He's a former Marine lawyer and now a law professor. Sergeant Bales' mental state will be determine by what's known as a Military Sanity Board. Doctors and psychologists who judge whether he's competent to stand trial.

SOLIS: I think that the defense has a pretty good case for mental instability, insanity, lack of mental responsibility.

BOWMAN: But the bar is high for proving insanity. Neal Puckett is also a former Marine lawyer. He says winning an insanity defense will be a challenge for Sgt. Bales' lawyer.

NEAL PUCKETT: John Henry Browne has to amass evidence from experts that the guy lacked mental responsibility, and he has to establish it by clear and convincing evidence to the jury, you know, they'd have - basically have to all find it.

BOWMAN: The reason an insanity defense is tough has to do with the man who tried to assassinate President Reagan in 1981. John Hinckley was found not guilty by reason of insanity. Public outcry at the verdict led to changes in the law. Among them, now only severe mental diseases or defects can form the basis for an insanity defense. But some lesser mental problem, something like post-traumatic stress, could persuade a jury to spare Sgt. Bales from the death penalty even if an insanity defense fails and he's convicted. Again, Gary Solis.

SOLIS: The defense doesn't have a lot of roads to travel right now, and so what they're going to do is blame it on the mental state, which probably has some validity, and blame it on the Army.

BOWMAN: Blame it on the Army for sending Sergeant Bales on four combat tours, which took a toll.

SOLIS: And that's because of the three prior tours that the suspect had in Iraq, the fact that he had been wounded a couple of times, that he objected to being sent back to Afghanistan for a fourth tour. So I think that this is the type of case which is tailor-made for a lack of mental responsibility defense.

BOWMAN: But military lawyer Neal Puckett points out that many soldiers have served multiple combat tours and suffered from PTSD.

PUCKETT: You can't totally displace responsibility on to the Army simply because you say well, he has TBI and/or he has PTSD.

BOWMAN: There's one other defense that may not be an option for Sgt. Bales, that his life was in danger. Neal Puckett defended a Marine accused of shooting civilians at Haditha, Iraq in 2005 after an attack on his squad. The most serious charges were dropped after Puckett argued the Marine felt he was threatened.

PUCKETT: The defense is not going to be able to rely on anything like rules of engagement or threat or self-defense or perception of positive identification of enemy, nothing like that.

BOWMAN: That's because investigators say some of these killed were still asleep. Tom Bowman, NPR News, Washington. Transcript provided by NPR, Copyright NPR.